I have a Chase primary and secondary loan.  The primary is going to be paid in FULL but we have to short the secondary.  The problem is the primary was never recorded.  We've been trying to find out WHO can help us for the last 30 days at Chase - it's gone to the office of the President and still NOTHING.. no one can seem to help.  I escalated to Fannie Mae who directed me back to Chase - Anyone have a clue where I can call to get this lien perfected?

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you are right. they record the property with the new owner and lien holders information. They also record any other liens on the property which would include taxes, mechanics liens or anything that might be what we call a cloud on title.

My point is that liens do not have to be recorded in order for them to be valid. That is in California Ghana.

It is necessary for the title company to be notified of what is going on and for the issue to be rectified and then to proceed with short sale.

They can not assume that because it might not be recorded that it is not valid.

Judi,

You have me confused.  Coming from CA I remember that the law is pretty much the same as FL. A mortgage or lien MUST be recorded to have effect with regard to property. The note or debt is not invalidated by not recording, but the property is not involved until it is recorded. All mortgages and liens have priority in accordance with date and time recorded. First in is first priority.

Either way, NO agent should get involved with this.  It should FIRST go to an attorney then a title company for title search and then back to the attorney for review again.  Doing anything and even notifying anyone of any issue without legal review can place on in a position of liability.It can harm the seller, and buyer.  

If the mortgage is unfiled, the note is unsecured by definition.  If the second is the only filed note then the short sale only needs approval from the second to close. That would leave an unsecured debt that was intended as a first.  Lots of legal repurcussions there as to liability of third parties. An unsecured debt in large ammounts is worth pennies on the dollar, not quarters.

Certainly no agent should ever ask "how do I perfect an old unfiled mortgage?". Not unless you really want your E&O to kick in!

Hi Smitty

It looks like your property is located in New Hampshire. Is this true?

I see New Hampshire uses both trust deeds and mortgages.

I found the following informative New Hampshire Statutes regarding recordings.

 

  479:3 Priority of Advances Under a Recorded Mortgage. – Subject to the provisions on priority in RSA 447:12-a, a recorded mortgage takes priority as of the date of its recording as to advances or obligations thereafter made or incurred that do not exceed the maximum amount stated in the mortgage.
http://www.gencourt.state.nh.us/rsa/html/XLVIII/479/479-3.htm

477:3-a Recording. – Every deed or other conveyance of real estate and every court order or other instrument which affects title to any interest in real estate, except probate records and tax liens which are by law exempt from recording, shall be recorded at length in the registry of deeds for the county or counties in which the real estate lies and such deed, conveyance, court order or instrument shall not be effective as against bona fide purchasers for value until so recorded.
http://www.gencourt.state.nh.us/rsa/html/XLVIII/477/477-3-a.htm

 From: New Hampshire Statutes

CHAPTER 477: CONVEYANCES OF REALTY AND INTERESTS THEREIN

CHAPTER 479: MORTGAGES OF REALTY

 

I'm sorry Judi, I am confused by your comment to me.

This topic is specific to real estate "trust deed" recording issue. Deeds and Mortgages have specific recording regulation based on the location of the property. This is not a California property.

did not imply that any trust deed was INVALID.

Maybe you did not noticed, but my first suggestion in this thread is to contact the title (not escrow) company.

My suggestion remains the same.

Not sure where we got lost.

In the past when I came across an issue that involved anything that may be covered by title insurance, I contacted title.

I was also able to get my clients legal help by contacting the title company's legal department. The title company did not dispute our then issue. They bent over backward to help my client. All at no cost. I have only had to have a client contact an outside attorney for fee once. This is not the type of problems I come across often.

I discovered Smitty is in New Hampshire. So I think this property is also in New Hampshire.

Yes I agree the debt (the NOTE) is still owed. (as long as the note did not go missing ) :O

We are talking about the lien position issue here. Currently there is no lien position for the missing trust deed until it gets recorded. As you mentioned and New Hampshire regulations points out, lien position is based on the timing of the recording.

Thanks for kindly replying.

The issue is NOT title.  Title is perfected. If the "first" is a deed of trust or mortage either way it is not perfected and is a second not a first. The issue is position and rights and who to negotiate with legally from the first position.

If the "first" is not recorded then legally there is no reason, need or purpose in any discussion with them (especially as a first). A clossing can legally happen without them!

The issues beyoond that are for attorneys to give legal opinion on before anyone does anything. No real estate agent should be trying to make these kinds of decisions as they are legal not real property transactional.

agreed Ghana.I do not think an attorney is necessary if a simple call to Title can cure the issue. 

If the 1st and 2snd is with Chase I would think they would know about the 1st and would not close without it.

I'm sure if you contact Chase it can be handled rather quickly.

Hello Smitty.

How is this transaction moving along?

Please let us know how you were able to solve this matter if already closed.

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